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01 November 2012

The #SCOTUS dog sniff cases

Yesterday, the Supreme Court heard oral arguments in two cases involving the use of drug-detection dogs. In the first case (Florida v. Jardines), the question was whether a dog sniff at the front door of a house in which marijuana was suspected of being grown, by a trained narcotics detection dog ("Franky") constitutes a search under the Fourth Amendment. In the second case (Florida v. Harris), the question was whether an alert by a trained drug-detection dog (in this case, "Aldo"), provides sufficient probable cause to search a vehicle.

Dog sniffs have traditionally not been considered "searches," (see United States v. Place, 462 U.S. 696 (1983); City of Indianapolis v. Edmond, 531 U.S. 32 (2000); and Illinois v. Caballes, 543 U.S. 405 (2005)) but those cases dealt with cars or luggage, when the expectation of privacy was less. In Jardines, the dog sniff was at the front door of a home, within the home's curtilage, and where the expectation of privacy was greater. I suspect that the court will rely on the holding of Kyllo v. United States, 533 U.S. 27 (2001), where Justice Scalia (writing for the majority) said that:

We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical "intrusion into a constitutionally protected area," Silverman, 365 U. S., at 512, constitutes a search--at least where (as here) the technology in question is not in general public use.

I think we're also likely to see some discussion of trespass similar to that in United States v. Jones, 565 US ___ (2012). Either way, I think the Court will come down on the side of Joelis Jardines and affirm the Florida Supreme Court's ruling.

In Harris, the case dealt with a dog sniff of a vehicle, but centered more on the qualifications or certifications of the dog itself, and it's record of alerting (accurately, or alternatively, false positives). I feel a little less certain about this one, but I suspect the Court is unlikely to second-guess the training and certification regimen that police departments use to qualify their narcotics detection dogs. As a result, I believe they will reverse the ruling of the Florida Supreme Court.